Month: November 2025

“Ms. Enei’s motion for summary judgment is brought pursuant to Rule 16 of the Family Law Rules O. Reg. 114/99, s. 16, (“FLR”). Rule 16 was amended in May 2015 to broaden the powers of the court on a summary judgment motion.

In Gough v. Gough, 2019 ONSC 5441, I summarize the legal principles applicable to summary judgment motions as follows:

31      Summary judgment motions are governed by Rule 16 of the Family Law Rules.

32      The burden of proof is on the party moving for summary judgment. Pursuant to sub-rule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

33      Pursuant to sub-rule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence they would be able to adduce at trial (Children’s Aid Society of Toronto v. T. (K.), 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.)).

34      Although sub-rule 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, No. 2 of para. 80).

35      Sub-rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

36      Sub-rule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. 1. 1. 1. 1. 1. 1. Weighing the evidence
                  2. Evaluating the credibility of a deponent.
                  3. Drawing any reasonable inference from the evidence.

37      Pursuant to sub-rule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in sub-rule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

38      In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

39      Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in sub-rule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

40      There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak — para. 49). As the Supreme Court stated at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, para. 63).”

            Enei v. Enei, 2024 ONSC 6323 (CanLII) at 23-24

“There are four circumstances in which a court in Ontario has jurisdiction to make a parenting order under the Children’s Law Reform Act.  They are:

(a)   First, under section 22(1)(a), an Ontario court may make a parenting order where the child is “habitually resident” in Ontario;

(b)   Second, under section 22(1)(b), where the child is not habitually resident in Ontario, the Court may nevertheless exercise jurisdiction if the child is physically present in Ontario, and other requirements are met;

(c)   Third, a court has jurisdiction to make a parenting order where the child is physically present in Ontario and the Court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in section 23 of the Children’s Law Reform Act; and 

(d)   Finally, the Court may exercise its parens patriae jurisdiction, which is specifically preserved by section 69.

See Los v. Ross, 2024 ONCA 122 ¶ 29. 

It is the father’s onus to demonstrate that a parenting Order should be made on one of these bases.  If not, the Court should decline to exercise jurisdiction:  see F v. N., 2022 SCC 51 ¶ 59.”

            Pengelly v. Lynas, 2024 ONSC 6269 (CanLII) at 12-13

“In White Burgess Langille Inman v. Abbot v. Haliburton Co, 2015 SCC 23 [“White Burgess”], Cromwell J opened the judgment as follows:

Expert evidence can be a key element in the search for the truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role. These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. See para 1.

In the child protection context, and in particular in a case such as this where the Society seeks to permanently sever the legal relationship between the children and their parents while severely restricting contact, the dangers associated with admitting potentially unreliable experts are perhaps at their highest. As noted in the Report of the Motherisk Commission, losing one’s child to an Order for extended Society care is the “capital punishment of child protection law.” Thus, the import of rigorously scrutinizing proposed expert evidence can hardly be overstated.

Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.

Having reviewed the caselaw regarding expert evidence, it appears that in many of the reported family law cases where a participant expert is permitted to testify, it has been on consent, unopposed, or with brief consideration of the applicable principles. It seems to be generally accepted in the Ontario caselaw that in most cases, professionals such as treating physicians, treating psychologists, and treating pediatricians may testify as participant experts so long as they stay within a relatively narrow scope, that deriving directly from their involvement and the professional opinions arrived at based directly on that involvement. The court’s ongoing vigilance and gatekeeping is essential regarding the scope of testimony. Bruff-Murphy v. Gunawardena, 2017 ONCA 502; Parliament v. Conley, 2021 ONCA 261.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 17-24

“In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal observed that the Rules involving admissions are a “useful practice” purposed “to dispense with proof at trial and to minimize the cost of litigation and the areas of dispute between the parties”, and “[f]or legitimate policy reasons, these objectives are to be encouraged.”: Serra, at para. 109. In Norris v. Norris, 2016 ONSC 7077, a case upon which the wife relies, the wife in that case brought a summary judgment motion after serving a Request to Admit. After noting that “[t]he conduct of litigation requires strategic thinking”, Corthorn J. implicitly endorsed the Serra reference to encouraging these objectives so as “to enable the court to deal with cases justly”, which is the primary objective of the Family Law Rules: Norris, at paras. 66 and 71. Those are set out in Rule 2(3) and include the following:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

A fact deemed true may, in certain circumstances, be withdrawn. The scope of the court’s discretion over the deemed admissions to which effect should be given will vary according to the circumstances giving rise to a party’s failure to respond and whether the admission involves fact, mixed fact and law, or a question of law. For example, where the failure to respond is due to satisfactory evidence of inadvertence or a mistake, or where there is a reasonable explanation for the change in a party’s position, a deemed admission may be withdrawn: Forget v. Forget, 2001 CarswellOnt 3271 (Ont. S.C.J.), at para. 17.   Where a Request involves minute details of marginal value to the larger issues in the case, a court may refuse to consider the Request or any deemed admissions arising from it: Splett v. Pearo, 2011 ONSC 5329, at paras. 4-9. Serial Requests may amount to an abuse of process, being neither cost effective nor advancing the interests of the case. Admissions involving mixed fact and law, or a question of law are generally of little weight: Serra, at para. 111.

A Request to Admit will be most successful where it is crafted to avoid patently controversial facts or propositions involving law. It can be a useful strategic tool at any stage of a family law proceeding and is entirely consistent with the primary objective of the Family Law Rules. A party who ignores a Request does so at their peril.”

Iturriaga v. Iturriaga, 2023 ONSC 6368 (CanLII) at 9-11

“The definition of a First Nations, Inuk or Métis child is contained in s. 1 of Ontario Regulation 155/18, General Matters Under the Authority of the Lieutenant Governor in Council under Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. This definition reads as follows:

Interpretation, First Nations, Inuk or Métis child

1. 1. 1. 1. 1.    A child is a First Nations, Inuk or Métis child for the purposes of the Actif,

(a)   the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b)   the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c)   it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,

(i)                 a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii)              there is a connection between the child and a band or a First Nations, Inuit or Métis community. (emphasis added)

In the present case, the children’s identification as Inuit meets the definition under s. 1(a) of the Regulation. I am mindful of the statements of Justice Bale in CCAS v. M.P. et al., 2021 ONSC 6788 wherein she joined with other justices in calling for a solid evidentiary basis before determinations of Indigenous identity are made. As Justice Bale stated:

It would be offensive to Indigenous people to permit non-Indigenous persons to appropriate the considerations and safeguards under the CYFSA that are intended to acknowledge historic injustices and redress present-day disadvantages that they do not share.  Surely, something more than a simple self-declaration of identity is needed: CCAS v. M.P. at para 49.”

The Children’s Society of Ottawa v. N.D., 2024 ONSC 6200 (CanLII) at 11-12

“At the close of the trial, the mother asked the court to order, as part of the final divorce order, the father to provide the mother with a religious divorce within 90 days of this decision. The mother did not give me any legal authority to make such an order. The only evidence at trial that pertains to this request was that the parties are Muslim, and the mother’s religion is very important to her. There was no evidence at trial that the mother had requested a religious divorce from the father or that the father had refused to provide it.

I find that the court does not have jurisdiction to make such an order at this time and dismiss this claim for the following reasons:

   The mother has not included a claim for a religious divorce in her pleadings. It is not in her Answer. While this is not necessarily fatal to her request, the fact that I did not have any evidence that the father was on notice that she was seeking such an order from the court means that I cannot find that, despite not being in her pleadings, it is otherwise just and in accordance with the court’s primary objective under Rule 2 to allow this claim to be raised at the end of the trial.

   The mother has not given me any authority in support of the court having jurisdiction to make the requested order.

   The process provided for under s.21.1 of the Divorce Actaddresses removing barriers to remarriage, but that process has not been followed here. Under s.21.1, the court has discretion to refuse to hear a party who fails to eliminate barriers to the remarriage of the spouse entitled to a divorce in Canada (see Zargarian-Tala v. Bayat-Mokhtari, 2019 BCSC 448; Salehi v. Tawoosi, 2016 ONSC 54; Schiewitz v. Shiewitz, 2018 ONSC 3864). Usually, the s.21.1 process is initiated well before trial because the remedy provided under the Divorce Act is to strike pleadings if the barriers are not removed, not to make an order requiring a party to grant a religious divorce.

   Even if I were to attempt to use s.21.1 to grant some similar order to the one sought, the mother has not provided evidence at the trial of the barriers to remarriage or steps taken to obtain a religious divorce or the information otherwise required under s.21.1.”

          Sablani v. Sablani, 2023 ONSC 6288 (CanLII) at 13-14

“As provided in s. 17(4.1) of the Divorce Act, an order for spousal support made under the Act may be varied where there has been a “material change in circumstances”.  A “material change in circumstances” is a “substantial” change.  There is a wealth of jurisprudence respecting this concept, which need not be reviewed here in detail: it is sufficient to note that a change must be substantial before the court will vary the order.

The phrase “catastrophic change in circumstances” is not a term of art under the Divorce Act and is not a settled concept in Canadian family law.   In Bradley v. Bradley, [1997] OJ No 2349, 1997 CanLII 15689 (ON SC), Mazza J. finds (at para. 13):

By the use of the phrase “catastrophic change”, the parties have agreed that it is not enough for the change to be substantial, a term that would define “material” but it must be “disastrous” or “devastating”, terms that would clearly describe “catastrophic”: Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995).  The question to be determined is whether or not the evidence supports the latter definition.

In Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 RFL (6^th) 62 (Ont. SCJ), para. 83, Linhares de Sousa J. found as follows:

With respect to whether this would constitute a “catastrophic change in circumstances”, the parties have not defined this phrase in their Separation Agreement.  One is therefore left to be guided by how the jurisprudence has defined that phrase.  There is no question that the threshold is high.  The cases use such words as “drastic”, “dramatic”, “radical”, and “gross” (see Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 SCR 801; Bradley v. Bradley, [1997] OJ No 2349, 1997 CanLII 15689 (ON SC); and Ouellette v. Ouellette, [1994] NWTJ No. 47).

In the recent case of Roberts v. D’Amico, 2021 ONSC 707, Kimmel J. found that the effects of measures taken in response to the COVID-19 pandemic did constitute a “catastrophic change in circumstances” for the payor husband, whose employment at Air Canada was affected profoundly by the reduction in air travel during the pandemic.”

Rokach v. Rokach, 2021 ONSC 7361 (CanLII) at 28-29

“It is appropriate for the court to rely on hindsight evidence, but only in certain circumstances.

In Best v. Best, 1997 CanLII 576 (ON CA), [1997] O.J. No. 4007 (Ont. C.A.), the court grappled with the evaluation of a party’s pension which depended on when that party retired.  The husband had not retired as of the date of trial and the trial decision.  The court stated that post valuation date facts can sometimes be relevant in determining such things as a retirement date assumption.  If subsequent events could reasonably be contemplated on the valuation date, these events may be relevant since the issue to be determined is the probable age of retirement as contemplated by the pension plan holder on the date of valuation.  Facts that were unknown to, or not within the contemplation of the pension holder on the valuation date are not relevant: Best at paras. 20-21.  Given that the eventual retirement age was neither known nor contemplated at the time of the trial, hindsight evidence was not permitted.

At the SCC, this finding was upheld with respect to the use of hindsight evidence, but the SCC opined that a different result may have prevailed had the parties chosen a different method of pension valuation: 1999 CanLII 700 (SCC), [1999] S.C.J. No. 40 (QL) at paras. 104-105.

This limited use of hindsight evidence was further supported in MB v. SBB, 2018 ONSC 4893.  In that case, McGee J. reviewed the caselaw and concluded that the court is generally reluctant to rely on hindsight evidence unless a subsequent change was reasonably foreseeable.  She states at para. 302:

One is to rely exclusively on information available at the time of valuation (whether date of marriage or date of separation), but that information may include realistic outcomes of future events already in the process of unfolding.

Based on the foregoing, hindsight evidence cannot be used to establish an actual value on the date of separation unless there are facts that are known or within the contemplation of the party on the date of separation, which facts are born out by future events.”

            Le v. Nguyen, 2022 ONSC 6265 (CanLII) at 24-28

“It is, perhaps, counter-intuitive that fostering a healthy relationship with the other parent may enhance the likelihood of a relocation Order being made. In O’Brien v. Chuluunbaatar, 2021 ONCA 555, the Court of Appeal upheld a trial judge’s Order permitting a mother to relocate to Mongolia with the parties’ seven-year old son, born and raised in Ontario. Pivotal to the best interests’ analysis were the benefits to the child of the mother’s enhanced emotional, psychological, social and economic well-being if relocation was permitted, and the trial evidence that

“…even with the relocation, the mother would facilitate the relationship between the child and the father, which the mother recognized as important. On the trial judge’s findings, the mother has always followed the court ordered access; been generous with additional access; encouraged telephone access between the father and the child even when they were in Mongolia; and, allowed the father to attend her residence for access in a period when the father had mental health difficulties.”: Ibid at para. 26.

In Bourke v. Davis, 2021 ONCA 97, also a relocation case, the trial judge allowed the mother of the parties’ two young children born and raised in Kitchener, Ontario, to move with her to Redmond, Washington where her new husband had found employment. A s.112 OCL report had recommended against the move because it would adversely impact the father’s involvement in the children’s health, education and religion. In upholding the move, the Court of Appeal observed that the trial judge had found that

“… there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children, including their dental care, additional access time for the [father], education issues, and the arrangement of events such as birthday parties.” Ibid, at para. 23.

          A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 138-139